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[2012] ZASCA 76
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Kgantsi v S (732/2011) [2012] ZASCA 76 (25 May 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 732/2011
Not reportable
In the matter between
MICHAEL KAGISO KGANTSI
…...........................................................
APPELLANT
and
THE STATE
….....................................................................................
RESPONDENT
Neutral citation:
Kgantsi v The State
(732/2011) [2012] 76 (25 May 2012)
Coram: VAN HEERDEN, MAJIEDT JJA and PETSE AJA
Heard: 9 MAY 2012
Delivered: 25 MAY 2012
Summary: Criminal law – sentence – leave to
appeal – reasonable prospects of success – clear
misdirection
regarding applicability of minimum sentence.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North West High Court, Mafikeng
(Hendricks J, sitting as court of first instance):
The following order is made:
Condonation is granted for the late filing of the
record and the appellant’s heads of argument.
The appellant is granted leave to appeal to this court
against the sentences imposed on counts 1, 2 and 3.
The appeal is upheld in respect of the sentences
imposed on counts 1 and 2.
The sentences on counts 1 and 2 are set aside and
substituted with the following:
Count 1: 30 years’ imprisonment
Count 2: 12 years’ imprisonment
The appeal against the sentence imposed on count 3 is
dismissed.
The sentence on count 2 is ordered to run concurrently
with the sentence on count 1. The sentences on counts 4 and 5 are
ordered
to run concurrently with the sentence on count 3. The
effective sentence is therefore 37 years’ imprisonment.
The sentence is antedated in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to 26 April 2005.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (Van Heerden, Petse AJA concurring):
[1] The appellant, Mr Michael Kagiso Kgantsi, was
convicted in the North West High Court, Mafikeng on the following
five counts:
Count 1: murder.
Count 2: robbery with aggravating circumstances.
Count 3: kidnapping.
Count 4: unlawful possession of a firearm.
Count 5: unlawful possession of ammunition.
[2] The appellant pleaded guilty on counts 2, 4 and 5
and not guilty on counts 1 and 3. He was nonetheless convicted on all
five
counts at the end of the trial. The appellant was sentenced as
follows:
Count 1: Life imprisonment (in terms of the minimum
sentence prescribed by
s 51(1) of the Criminal Law Amendment Act 105 of 1997,
(‘the Minimum Sentence Act’).
Count 2: 25 years’ imprisonment (in terms of the
minimum sentence prescribed by s 51(1) of the Minimum Sentence Act).
Count 3: 7 years’ imprisonment.
Count 4: 3 years’ imprisonment.
Count 5: 2 years’ imprisonment.
[3] The matter is characterized by several procedural
defects. The appellant sought condonation in the court below for the
late
filing of his notice of application for leave to appeal and for
the late prosecution thereof. He also applied for leave to appeal
against both his conviction and sentence. Hendricks J dismissed both
applications. The learned judge erred procedurally in this
regard,
since refusal of the condonation application should have resulted in
the matter being struck from the roll. The dismissal
of the
applications led to a further procedural mistake, this time on the
part of the appellant, who then approached this court
directly on
appeal against sentence. He did so in reliance upon this court’s
decisions in
S v Gopal
1
and
S v Moosajee.
2
Those decisions confirmed that there was an automatic
right of appeal to this court from a high court sitting as a court of
appeal,
in matters where the latter refuses an application for
condonation.
3
But this is not such a case. As stated, Hendricks J sat
as court of first instance.
Section 316(8)
of the
Criminal Procedure
Act 51 of 1977
therefore applies and the appellant should have
petitioned this court for leave to appeal. The respondent drew the
appellant’s
attention to this procedural flaw and adopted the
attitude that, because the appellant was not properly before this
court on appeal,
the respondent would not file any heads of argument.
The Registrar of this court, however, by direction of the presiding
judge,
informed the parties in writing that the application for leave
to appeal and corresponding condonation application were referred
for
oral argument in terms of
s 21(3)(
c
)(ii)
of the Supreme Court Act 59 of 1959 and that the parties must be
prepared, if called upon to do so, to address this court
on the
merits. The respondent thereafter duly filed heads of argument and
the parties argued both applications and the merits fully
before us.
Leave to appeal is sought only against the sentence imposed on counts
1, 2 and 3 and condonation is being sought for
the late filing of the
record and the appellant’s heads of argument.
[4] The facts underlying the conviction and sentence are
briefly as follows. The deceased, Mr Andrew Ranthate Molefe, and the
main
State witness, Mr Thomas Masizane, were travelling at night in
the deceased’s motor vehicle when the driver (the deceased)
stopped and offered a lift to a hitchhiker, who later turned out to
be the appellant. At some point during the journey the appellant
asked to alight from the vehicle and, in the process of alighting,
the appellant drew a firearm and shot the deceased in the head.
Mr
Masizane complied with the appellant’s instruction that he
should alight from the vehicle. On the orders of the appellant,
he
started to search the deceased. The appellant then told him to move
aside, whereafter the appellant searched and removed from
the
deceased’s person a wallet and cellular telephone. The motor
vehicle had stalled and the appellant ordered Mr Masizane
at gunpoint
to walk in front of him for about two to three kilometres towards a
nearby village. The appellant later heeded Mr Masizane’s
anguished pleas to be freed and they parted ways.
[5] As stated, the appellant admitted his guilt on the
aggravated robbery and unlawful possession of a firearm and
ammunition charges.
In this regard a written plea explanation was
handed in. In respect of the murder charge the appellant averred in
the plea explanation
that he had accidentally shot the deceased,
after the latter had ignored his request to stop the vehicle so that
he could alight.
He denied having held Mr Masizane captive, alleging
instead that Mr Masizane had voluntarily walked with him. The trial
judge rightly
rejected these allegations, which were repeated in the
appellant’s oral testimony, as false beyond reasonable doubt.
The
version that he had accidentally shot the deceased is at variance
not only with Mr Masizane’s evidence, but also with the
appellant’s confession before a magistrate (admitted as
evidence at the trial by consent) in which the appellant stated that
he had shot the deceased because he was ‘frightened’.
[6] The respondent did not oppose the condonation
application and it can be disposed of in brief terms. The appellant’s
explanation
for the delay in timeously filing the record and heads of
argument is simply this: he had immediately furnished his legal
representatives
with instructions to pursue an appeal against
sentence and was (incorrectly) advised that, because his condonation
application
had been refused, he had an automatic right of appeal to
this court. The delay was caused by the procurement and preparation
of
the trial record and the leave to appeal and condonation
proceedings in the high court. As regards the merits of the appeal,
he
says that there are reasonable prospects of success inasmuch as
the sentence imposed by the court below is so ‘outrageous’
that another court will reduce it. He also contends that the trial
judge overemphasized the gravity of the offences, failed to
consider
the cumulative effect of the sentences, erred in not finding
substantial and compelling circumstances warranting a lesser
sentence
than the minimum prescribed by law and finally, on the aggravated
robbery charge, erred in sentencing him as if he was
a third and not
a first offender in respect of such an offence.
[7] It can be accepted for present purposes that the
delay in filing the record and heads of argument within the
prescribed time
limits is due to the incorrect advice furnished to
the appellant. Since there were clearly reasonable prospects of
success in the
appeal against the sentence on count 2 (robbery with
aggravating circumstances), we granted the condonation application
and also
the application for leave to appeal at the hearing and
proceeded to hear the appeal on the merits. The sentence of 25 years’
imprisonment on count 2 was imposed purportedly by virtue of the
provisions contained in s 51(2)(
a
)(iii), read with Part
II
of Schedule 2 of the Minimum Sentence Act, ie as if the appellant was
a third offender for robbery with aggravating circumstances.
That he
plainly was not, as will presently appear. This material misdirection
alone constitutes reasonable prospects of success.
[8] I turn to the merits of the appeal against sentence.
It will be recalled that the appellant is appealing against the
sentence
imposed on counts 1, 2 and 3 only. On the murder charge, the
minimum sentence provisions were not mentioned in the indictment, nor
had the appellant’s attention been drawn to them during the
trial. The trial judge canvassed this aspect with the appellant’s
counsel for the first time during argument in mitigation of sentence.
Counsel were agreed that, on the facts of this case, this
constituted
a material misdirection. The sentence on the murder charge must
therefore be set aside and considered afresh and outside
of the
minimum sentencing regime. The reprehensibility of the murder is
unquestionable. The appellant was given a lift by the deceased
for no
consideration, since the appellant did not have three rand which the
deceased asked him to pay for the lift. This act of
benevolence was
met with a callous execution. The postmortem report indicates that
the deceased was shot at almost point blank
range in the back of his
head. The trial judge cannot be faulted in his finding that the
motive for this shocking act appears to
be robbery. This finding is
supported by Mr Masizane’s evidence that the appellant told him
that he had shot the deceased
as a means to create a better life for
himself. The deceased was a well-known traffic officer in that area
with five children,
at least three of whom were his dependants.
[9] In respect of the robbery with aggravating
circumstances, as stated, Hendricks J purportedly imposed sentence in
terms of s
51(2)(
a
)(iii),
read with Part
II
of Schedule 2 of the Minimum Sentence Act. In terms of
those provisions a third offender for robbery with aggravating
circumstances
must, in the absence of substantial and compelling
circumstances, be sentenced to a minimum of 25 years’
imprisonment. There
are two material misdirections in the imposition
of this sentence. First, counsel again agreed that, on the facts of
this case,
the failure to alert the appellant to the minimum
sentencing provisions, either in the indictment, or at the plea stage
or during
the trial constituted a material misdirection. The second
misdirection is that the appellant had not previously been convicted
of robbery with aggravating circumstances. His two previous
convictions were for theft and for housebreaking with the intent to
steal and theft. The trial judge erred in concurring with the
prosecutor’s submission that the minimum sentence of 25 years’
imprisonment applied in view of the fact that the appellant was a
third offender in respect of aggravated robbery. The appellant
was in
fact a first offender in respect of that particular offence. This
court has held that a previous conviction of robbery with
aggravating
circumstances (and not merely for robbery) is a jurisdictional
requirement necessary to trigger the provisions in s
51(2)(
a
)(ii)
and (iii).
4
As in the case of the sentence for murder, the sentence
on aggravated robbery must therefore be set aside and considered
de
novo
, outside the parameters of the Minimum
Sentence Act.
[10] In respect of the sentence for kidnapping, the
position is different. The provisions of the Minimum Sentence Act did
not apply
to this conviction. The test on appeal is well known,
namely whether there has been a material misdirection or whether the
sentence
is shockingly inappropriate. On behalf of the appellant it
was submitted that the latter is indeed the case, since the appellant
did not injure Mr Masizane and freed him after heeding his frantic
pleas.
[11] By virtue of the material misdirections outlined
above, this court is at large to exercise its sentencing discretion
in respect
of counts 1 and 2 and it is convenient to deal with these
two counts together. The aggravating circumstances have already been
outlined as far as the murder charge is concerned. In respect of the
robbery, it is aggravating (over and above the fact of course
that a
firearm had been used) that the appellant had instructed Mr Masizane
to search the deceased while the latter must have been
dying. When Mr
Masizane reluctantly started to do so, the appellant told him to move
aside and continued the search himself. This
is further indication of
his callousness. There can be no question that the appellant is
deserving of severe punishment on counts
1 and
2.
There is a distinct absence of remorse on the
appellant’s part, notwithstanding his plea of guilty on some of
the offences.
His lack of contrition is manifested by his untruthful
plea explanation and testimony in respect of the murder – both
directly
at odds with his confession before the magistrate. I am of
the view that the appellant should be afforded the benefit of remorse
as mitigating factor only to a very limited extent on the aggravated
robbery charge, to which he had pleaded guilty. Genuine remorse
in
respect of this and the other charges would have entailed the
appellant taking the trial court into his confidence so that it
could
have ‘a proper appreciation of, inter alia: what motivated the
accused to commit the deed; what has since provoked
[his] change of
heart and whether [he] does indeed have a true appreciation of the
consequences of those actions’.
5
[12] In respect of the kidnapping, an aggravating
circumstance is that Mr Masizane had been marched at gunpoint at
night over a
distance of some two to three kilometres for nearly two
hours. It must have been a terrifying experience, particularly since
Mr
Masizane had just witnessed the deceased being shot in the most
callous fashion and he no doubt feared that a similar fate would
befall him. The appellant only relented, some two hours later, after
Mr Masizane pleaded for mercy and alluded to the fact that
he was the
father of small children.
[13] The appellant’s personal circumstances are
unremarkable and are comprehensively outweighed by the numerous
aggravating
circumstances and by the gravity of the offences. The
appellant was 27 years old at the time of sentencing, single with two
children
aged six and two respectively, self-employed as a welder who
earned five hundred Rand on ‘a good day’ and a
tuberculosis
sufferer. He has had two previous brushes with the law,
as set out above. There are no striking mitigating features save, to
a
limited extent, his plea of guilty on the aggravated robbery
charge.
[14] Having given the matter careful consideration, I am
of the view that a sentence of 30 years’ imprisonment would be
appropriate
on the murder charge. Such a sentence would give
recognition to the justifiable abhorrence evoked by the callousness
of the deed,
while at the same time blending the sentence with an
element of mercy and affording the appellant a chance at
rehabilitation. On
the robbery with aggravating circumstances, a
sentence of 12 years’ imprisonment would similarly meet the
sentencing objectives
in my view. The sentence of 7 years’
imprisonment on the kidnapping charge is severe indeed, but not
shockingly excessive.
The appellant’s conduct, outlined above,
deserved severe punishment. There are no grounds warranting
interference with the
sentence on appeal. In order, however, to
ameliorate the cumulative effect of the sentence on the various
counts, I intend ordering
that the sentence on count 2 run
concurrently with the sentence on count 1 and that the sentence on
counts 4 and 5 run concurrently
with that on count 3.
[15] The following order is made:
Condonation is granted for the late filing of the
record and the appellant’s heads of argument.
The appellant is granted leave to appeal to this court
on the sentences imposed on counts 1, 2 and 3.
The appeal is upheld in respect of the sentences
imposed on counts 1 and 2.
The sentences on counts 1 and 2 are set aside and
substituted with the following:
Count 1: 30 years’ imprisonment.
Count 2: 12 years’ imprisonment.
The appeal against the sentence imposed on count 3 is
dismissed.
The sentence on count 2 is ordered to run concurrently
with the sentence on count 1. The sentences on counts 4 and 5 are
ordered
to run concurrently with the sentence on count 3. The
effective sentence is therefore 37 years’ imprisonment.
The sentence is antedated in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to 26 April 2005.
___________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES:
Counsel for appellants : ADV. N L SKIBI
Instructed by : Legal Aid South Africa, Mafikeng Justice
Centre
Bloemfontein Justice Centre
Counsel for respondents : G S MAEMA
Instructed by : The office of the Director of Public
Prosecutions
Division of the North West High Court
Mafikeng
1
S
v Gopal
1993 (2) SACR 584
(A).
2
S
v Moosajee
2000 (1) SACR 615
(SCA).
3
The
legal position has now changed – in
S
v Senkhane
2011 (2) SACR 493
(SCA)
this court laid down that leave to appeal should be sought first
from the high court against a refusal by it, sitting as
a court of
appeal, of a condonation application related to the appeal. If that
is refused, an accused person will have further
recourse to this
court by way of petition (paras 38 and 39).
4
S
v Mokela
2012 (1) SACR 431
(SCA) para
6.
5
Per
Ponnan JA in
S v Matyityi
2011
(1) SACR 40
(SCA) para 13.